Execute the Poor

 

 

Death Penalty's War on the Poor  

There are many reasons why the death penalty should be abolished. Consider the following information from the Innocence Project:

1) Executions are carried out at staggering cost to taxpayers.

It costs far more to execute a person than to keep him or her in prison for life. A 2011 study found that California has spent more than $4 billion on capital punishment since it was reinstated in 1978 and that death penalty trials are 20 times more expensive than trials seeking a sentence of life in prison without possibility of parole. California currently spends $184 million on the death penalty each year and is on track to spend $1 billion in the next five years.

2) There is no credible evidence that capital punishment deters crime.

Scientific studies have consistently failed to demonstrate that executions deter people from committing crime more than long prison sentences. Moreover, states without the death penalty have much lower murder rates. The South accounts for more than 80% of US executions and has the highest regional murder rate.

3) Innocent people have been convicted and executed.

The wrongful execution of an innocent person is an injustice that can never be rectified. Since the reinstatement of the death penalty, more than 150 men and women have been released from Death Row nationally....some only minutes away from execution. Moreover, in the past two years evidence has come to light which indicates that four men may have been wrongfully executed in recent years for crimes they did not commit. This error rate is simply appalling, and completely unacceptable, when we are talking about life and death.

4) Race plays a role in determining who lives and who dies.

The race of the victim and the race of the defendant in capital cases are major factors in determining who is sentenced to die in this country. In 1990 a report from the General Accounting Office concluded that "in 82 percent of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. those who murdered whites were more likely to be sentenced to death than those who murdered blacks."

5) The death penalty is applied at random.

Politics, quality of legal counsel and the jurisdiction where a crime is committed are more often the determining factors in a death penalty case than the facts of the crime itself. The death penalty is a lethal lottery: of the 22,000 homicides committed every year approximately 100 people or less are sentenced to death.

6) Capital punishment goes against almost every religion.

Though Christian advocates of the death penalty use isolated passages of scripture have been quoted to support the death penalty many religious groups in the United States regard executions as immoral.

7) The USA is keeping company with notorious human rights abusers.

The vast majority of countries in Western Europe, North America and South America — more than 140 nations worldwide — have abandoned capital punishment in law or in practice. The United States remains in the same company as Iraq, Iran, North Korea, and China as one of the major advocates and users of capital punishment.

8) Inordinate sums of money are currently spent on the death penalty that could be better used to assist the families of murder victims.

Many family members who have lost love ones to murder feel that the death penalty will not heal their wounds nor will it end their pain; the extended process prior to executions can prolong the agony experienced by the family. Funds now being used for the costly process of executions could be used to help families put their lives back together through counseling, restitution, crime victim hotlines, and other services addressing their needs.

9) Bad lawyers are a persistent problem in capital cases.

Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.

10) Life without parole is a sensible alternative to the death penalty.

In every state that retains the death penalty, jurors have the option of sentencing convicted capital murderers to life in prison without the possibility of parole. The sentence is cheaper to tax-payers and keeps violent offenders off the streets for good. Unlike the death penalty, a sentence of Life Without Parole also allows mistakes to be corrected. There are currently over 3,300 people in California who have received this alternative sentence, which also has a more limited appeals process last approximately 3 years. According to the California Governor's Office, only seven people sentenced to life without parole have been released since the state provided for this option in 1977, and this occurred because they were able to prove their innocence.

The Moral Arguments

Immanuel Kant

One of the most significant arguments in favor of the death penalty has been the retributivist argument addressed by Immanuel Kant in the “categorical imperative.” The retributivist position holds that criminal punishment must include the elements of the crime itself, making sure that the punishment fits the crime committed, and that the offender understands that the freedom and autonomy of the person(s) violated is wrong. The retributivist position denies that punishment should be directed at outcomes only (consequentialist) and must be directed at “desert.” For Kant crime is an intentional act accompanied by knowing that the act itself is a transgression. Kant argues that punishment must be justified so that the offender in order to help them reform and that it is never justified to sacrifice an individual for public well-being [1].

Arguments in favor of retributivist positions are generally based on utilitarian principles in which increasing punishment deters crime. Just as economic systems are structured upon incentives, so criminal justice should be structured on deterrence and disincentives. However the analogy between economic incentives and criminal conduct “limps” precisely because the major focus on criminal actions is deterrence and economic actions is incentive. Nevertheless the utility of punishment should prevent misbehavior for fear of punishment. Moreover they argue that disincentives will improve the moral character of the offender and keep offenders from misbehaving. Thus if the crime is severe enough, the death penalty can be a punitive option under both dimensions of retributivism.

The key idea here is that Kant is attempting to justify a form of “proportionality” and avoid extremes with respect to punishment and deterrence. In other words, the punishment must fit the crime.

Some argue that the retributivist justifications for the death penalty in the United States has hardly been free from racial bias and arbitrary applications, as cited in the Baldus study [2]. As in Justice Blackmun’s argument against the death penalty, Baldus revealed systematic bias in the application of capital punishment and criminal justice against minorities, specifically African American males. Not only is there a bias against African American males according to Baldus, but also a geographic bias, particularly in the South. These arbitrary standards fly in the face of pro death penalty advocates such as Ernest Van den Haag and Stephan Nathanson who argue that arbitrary standards applied to African American males, while irrelevant, is inconsequential. In fact, Van den Haag and Nathanson argue that mistakes in the application of justice are tolerable as long as procedural due process is carried out.

The implication is that justice can never be perfectly applied or proportionately allocated in every situation and that mistakes will be made. As such the overriding need to maintain execution as a deterrent or to be proportionately applied is dubious. Nonetheless, the Baldus study provides powerful empirical evidence that racial bias is an ingrained aspect of capital punishment in the United States. The study shows that prosecutors are aware of racist attitudes in jurors, that police target African American communities for crime surveillance more that white communities, and that racial disparities and poverty … make African Americans more vulnerable to criminal prosecution and capital punishment convictions than whites.  

John Rawls

In A Theory of Justice, John Rawls develops a social justice model for the purposes of addressing perceived injustices in society. Rawls first establishes an “original position,” a starting point in which individuals imagine themselves behind a hypothetical “veil of ignorance.” Behind the “vail” all people are equal and no one knows of existing differences between them relative to intelligence, education, wealth, social class, race, gender, etc. Rawls assumes that this form of equality is something that people would generally agree to as fairness. This becomes problematic however, once people move out from behind the vail of ignorance and realize that each person has different understandings of justice as fairness, in terms of interests, abilities, social circumstances, and agendas. To account for these differences Rawls establishes another position, the “difference principle” which serves as a framework to balance out individual differences, for example, between rich and poor and the problems associated with this relationship. Rawls establishes this “balance” by positing the maximum amount of liberty for all while simultaneously distributing scarce resources to those most in need.

Behind the veil of ignorance  As a result, rules are made so that no one is advantaged over the other or that others suffer at the expense of some. From the veil of ignorance starting point in the original position, Rawls thus constructs the difference principle model. And here is the point. Londono, using Rawls “veil of ignorance” model, frames the death penalty debate in terms of arbitrary and disproportionate results, specifically for African American men, the underclass and geographic regions. Londono applies the veil of ignorance model to the death penalty to illustrate the fact that no one in the original position would want to construct a rule or create a law that could be arbitrarily applied against oneself. In other words, why would rational individuals create a rule or pass a law that could result in their random and wrongful execution?

Londono argues that no rational person would consent to a system of punishment that was arbitrary since they might be the wrongfully executed victim of an arbitrary system. London further argues that while not all punishment is arbitrary, the death penalty is a separate issue precisely because it is irrevocable. Londono argues that the death penalty constitutes an illegitimate use of power and a moratorium must be placed on the death penalty. Even one of the most powerful philosophical thinkers in history, John Stuart Mill, argued “that if by an error of justice an innocent person is put to death the mistake can never be corrected.”  

Londono’s point, via empirical research (arbitrariness based on race, gender, geo-graphics), and Rawlsian “fairness” based on the “veil of ignorance” (why anyone one of us in the original position would rationally jeopardize our own life), the death penalty must be abolished. As long as a democratic society exists it must necessarily abolish the death penalty, not simply because it fails to deter capital crimes, but because the role of the state in a democratic society is not to end human life, but rather to support it. Any termination of human life through capital punishment is tantamount to police state tactics. Clearly Londono’s arguments against retributivist justification counters Gregg v. Georgia which argues that capital punishment serves a useful purpose in deterrence against current and future capital crimes. Still the question remains as to whether or not the death penalty can be applied fairly in the United States. 

Class Warfare and the Poor

The Seattle Journal for Social Justice described the death penalty as “class warfare” against the poor, noting that those sentenced typically do not have the financial ability to hire legal representation with the skill and resources to get their death sentence dropped.  Roughly ninety-five percent of all people on death row are poor, and in this regard, capital punishment disproportionately targets the poor and working class, which coincidentally is often majority black and Latino areas to which even the United Nations is urgently assessing the impact on the poor and people of color. The concern is that the death penalty disproportionately affects the poor, not only in the United States, but and other countries as well. 

United Nations human rights experts* are calling for urgent action to end the disproportionate impact of the death penalty on people from poorer communities. They say imposing the death penalty as a result of discrimination constitutes an arbitrary killing and governments must not stand idly by. 

Their comments come in a joint statement marking World Day Against the Death Penalty on Tuesday 10 October:

If you are poor, the chances of being sentenced to death are immensely higher than if you are rich. There could be no greater indictment of the death penalty than the fact that in practice it is really a penalty reserved for people from lower socio-economic groups. This turns it into a class-based form of discrimination in most countries, thus making it the equivalent of an arbitrary killing.

People living in poverty are disproportionately affected by the death penalty for many reasons. They are an easy target for the police, they cannot afford a lawyer, the free legal assistance they might receive is of low quality, procuring expert evidence is beyond their means, tracing witnesses is too costly, and access to appeals often depends on being able to afford extra counsel. Many cannot afford bail and therefore remain in custody before their trials, further hindering their efforts to prepare an effective defense.

Some legal aid systems become active only at the trial stage, meaning that defendants from low socio-economic backgrounds are often interrogated and investigated without a lawyer. By the time the case reaches court, it may already be too late to guarantee a fair trial. Corruption of law enforcement officials is another detrimental factor.

Poverty also compounds obstacles which vulnerable and disadvantaged groups in society are already facing.  In many countries, this especially includes people of African descent, as well as others who are discriminated against on the basis of their gender, ethnicity, race or migration status.

Meanwhile, migrants who find themselves caught up in the criminal justice system face multiple obstacles in effectively challenging charges made against them, including unfamiliarity with legal language and procedures, limited awareness of their rights, financial constraints, and the possible lack of a supportive social network.

They may also face bias by judges, police officers and investigators, which can influence the verdict against them, and leave them at increased risk of receiving the death sentence.

We call on all States to treat all migrants involved in the criminal justice systems with respect and dignity as equal rights holders, regardless of their migratory status.

Women living in poverty are also at a severe disadvantage when faced with the risk of a death sentence. In some States, women face the death penalty, including by stoning, not only in cases of murder, but also for alleged adultery, same sex-relationships and drug-related offences.   

Discrimination against women is compounded by intersecting factors, including their socio-economic status. This discrimination based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, has an adverse impact on the ability of women to gain access to justice on an equal basis with men.

We are also concerned that it is extremely rare for domestic abuse to be treated as a mitigating factor. Imposing the death penalty in cases where there has been evidence of self-defense constitutes an arbitrary killing. 

Poverty continues to affect prisoners - and their families – even after they reach death row. Living conditions are worsened by difficulties in accessing food, medical care and other services. Relatives who themselves live in poverty are unable to provide financial help. These inmates may even lack the resources to stay in touch with their families and friends while in prison.

Around the world, death sentences continue to be imposed in violation of major international standards, including the right to a fair trial and the principle of non-discrimination. The International Covenant on Civil and Political Rights makes clear that all people are entitled to the equal protection of the law without discrimination, while UN safeguards on the use of the death penalty make clear that people must have received a fair trial, including the right to adequate legal assistance, at all stages.

There is a disproportional impact of the death penalty on the poor which indicates that international human rights standards are violated.

We applaud the growing number of countries that have abolished the death penalty and welcome the figures for 2016 showing an overall decrease in its use.

However, the global effort towards its progressive abolition must continue to grow, along with the work to end systemic discrimination against some of the most vulnerable people in our societies.

(*) The UN experts: Ms. Agnes Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions; the Working Group on discrimination against women;  Mr. Felipe González Morales, Special Rapporteur on the human rights of migrants; Mr. Philip Alston, Special Rapporteur on extreme poverty; Mr. Mutuma Ruteere, Special Rapporteur on racism; and the Working Group on people of African descent.

The Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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[1] Robert A. Pugsley, “A Retributivist Argument Against Capital Punishment” Hofstra Law Review, (9)5, Article 7 (1981): 1501-1523.

[2] David C. Baldus, George Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press, 1990;

David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner, and Barbara Broffitt, “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview,” with Recent Findings from Philadelphia, Cornell Law Review 83 (1998): 1638–770.

Randell L. Kennedy, “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court,” Harvard Law Review 101 (1988): 1388–433.

Ed Martin

Tubac, Arizona

Long Beach, California